Rachel Kurth (US)

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Recently, New York State and New York City have continued the trend of enacting employee-friendly legislation and issuing broad enforcement guidance under their respective employment laws and regulations.  New York State and New York City employers should be aware of the following recent developments from 2018 and early 2019, and should take action to review and update their practices and policies for compliance.

New York City lactation room and policy laws — new policy requirement

Federal and New York State laws already require employers to make reasonable efforts to provide a room other than a bathroom where a nursing employee can express breast milk in privacy.  New York City recently passed two laws expanding those rights.  Effective March 18, 2019, New York City employers will be subject to additional specific requirements regarding the lactation room that must be made available to nursing mothers.  New York State law already requires that the lactation room be private, well-lit, and contain, at a minimum, a chair and small table, desk, counter, or other flat surface.  The New York City law will require additional amenities in the lactation room, including an electrical outlet and nearby access to running water, and that the employer provide a refrigerator suitable for breast milk storage in reasonable proximity to the employee’s work area.  Also effective March 18, 2019, New York City employers will be required to implement a written lactation room policy that meets specified requirements, and provide a copy of the policy to all employees upon hiring.  The policy must include a statement that employees have the right to request a lactation room, and identify a process by which employees may make such request (which process must meet certain minimum requirements).

“Cooperative Dialogue” amendments to New York City Human Rights Law

Effective October 15, 2018, New York City amended its Human Rights Law to require covered employers to engage in a “cooperative dialogue” with individuals who may be entitled to a reasonable accommodation related to religious beliefs, disability, pregnancy, childbirth or a related medical condition, or because the employee was a victim of domestic violence, sex offenses, or stalking.  The law requires that covered employers follow certain procedures when they receive a request for an accommodation, or when they have notice that an individual may need an accommodation, including the following:

In September 2018, we reported on New York State’s issuance of draft guidance under the recently enacted New York State law aimed at preventing sexual harassment.  New York State has now issued final guidance under this law.  This includes final guidance regarding:

  • The anti-sexual harassment policy that every New York State employer (regardless of size and including those who employ only domestic and household employees) must adopt by October 9, 2018; and
  • The mandatory interactive anti-sexual harassment training that every New York State employer is required to conduct for all employees annually.

Final Guidance Delays Deadline to Conduct First Annual Mandatory Training

Note that, under the prior draft guidance, the first annual interactive anti-sexual harassment training was required to be conducted before January 1, 2019.  The final guidance delays the requirement to conduct the first annual interactive training until October 9, 2019.  The final guidance also seemingly relaxes the timing requirement for training new hires.  Whereas the prior draft guidance specified that new hires had to be trained within 30 days of beginning employment, the final guidance encourages training new hires as soon as possible, but does not impose a deadline.

October 9, 2018 Deadline for Adopting Compliant Written Policy

The October 9, 2018 deadline for New York State employers to adopt an anti-sexual harassment policy that complies with the new law is only days away.  New York State employers who do not adopt the model policy issued by New York State can adopt individually tailored policies, as long as they meet the minimum requirements of the New York State law.  Note that there are certain provisions in the New York State model policy that go beyond the minimum standards required of New York State employers, so for this and other reasons, employers may prefer to customize their own policies. 

Key opinion letter allows FMLA leave for voluntary organ donation

Earlier this week, the U.S. Department of Labor (“DOL”) issued six advisory opinion letters on various Family and Medical Leave Act (“FMLA”) and Fair Labor Standards Act (“FLSA”) issues.  From time to time, opinion letters such as these are issued to provide legal guidance to employers.

The DOL opinion letter likely to be of most interest to US companies is the one that addressed whether an employee in good health who voluntarily chooses to undergo organ donation surgery could use FMLA leave for post-operative care.  See FMLA2018-2-A. The DOL opined that this would qualify as a “serious health condition” under the FMLA if it involved either “inpatient care” or “continuing treatment.” See 29 C.F.R. §§ 825.114 and 825.115.

Though the DOL opinion letter touched on medical certification as a “basic requirement” for FMLA leave, the DOL did not appear to find it significant that the employee was choosing to undergo the surgery voluntarily and “solely to improve someone else’s health.”  Instead, it focused on the medical treatment that would be involved in the organ donation surgery.

The other DOL opinion letters covered a variety of topics, and set forth the following opinions:

In April 2018, we reported on New York State’s enactment of a new law aimed at preventing sexual harassment. We summarized this new law in detail in our legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws, and our Global Workplace Insider article, New York State’s new sexual harassment prevention laws will require action by all New York employers.  Under this law, New York State employers will need to comply with the following new requirements, among others:

  • By October 9, 2018, every New York State employer (regardless of size and including those who employ only domestic and household employees) is required to adopt an anti-sexual harassment policy that meets specified requirements; and
  • Before January 1, 2019, every New York State employer is required to conduct interactive sexual harassment prevention training that meets specified requirements. Thereafter, all new New York State employees must complete such training within 30 calendar days of beginning employment, and all New York State employees must receive such training at least once per year.

Recent New York State guidance on sexual harassment prevention measures

New York State has recently issued additional guidance on this new law, including a draft model anti-sexual harassment policy and complaint form, a draft training module, and draft frequently asked questions.  All of this guidance is in draft form, and the public can provide comments on the drafts on or before September 12, 2018.  Presumably, New York State will issue final guidance sometime after the end of the comment period and before the October 9, 2018 deadline for adopting a compliant anti-sexual harassment policy.  New York State employers who do not adopt the model documents issued by New York State can adopt individually tailored policies and training modules, as long as they meet the minimum requirements of the New York State law.  For this purpose, New York State issued documents summarizing the law’s minimum standards for sexual harassment prevention policies and training.  Note that there are certain provisions in the New York State draft model policy that seem to go beyond the minimum standards required of New York State employers, so for this and other reasons, employers may prefer to customize their own policies.  Additionally, it is unclear how far in advance of the October 9, 2018 deadline New York State will issue its final guidance and final model policy.  Accordingly, New York State employers will want to begin working now to get their policies into compliance by the October 9, 2018 deadline. 

In May 2018, we reported on New York City’s recent enactment of a number of laws addressing sexual harassment in the workplace.  For further information, see our prior Global Workplace Insider post, New York City employers take note: New anti-sexual harassment laws enacted.  As we previously reported, effective September 6, 2018, all New York…

On May 9, 2018, New York City enacted a number of laws addressing sexual harassment in the workplace.  The laws are summarized below.  New York City employers who do not yet have anti-harassment and anti-retaliation policies in place should promptly begin the process for adopting them.  New York City employers should also begin to make arrangements for providing their employees with anti-harassment training (upon hire and annually thereafter).  Such training is now required under both New York State and New York City law.  New York State’s law, which was also recently enacted, will become effective first.  For a brief discussion of the recent New York State legislation, please see our prior blog post, New York State’s new sexual harassment prevention laws will require action by all New York employers.

Anti-Sexual Harassment Training

Beginning April 1, 2019, New York City employers with 15 or more employees (which includes interns for purposes of this new law) must provide anti-sexual harassment training to all of their New York City employees on an annual basis.  The training must also be provided to new hires (who will work more than 80 hours per year) during the first 90 days of their employment.  The training must address the following items (at a minimum):

  1. an explanation that sexual harassment is a form of unlawful discrimination under New York City, New York State, and federal law;
  2. a description, using examples, of what constitutes sexual harassment;
  3. a description of the employer’s internal procedures for reporting claims of sexual harassment;
  4. a description of the complaint process available through the New York City Commission on Human Rights, the New York State Division of Human Rights, and the United State Equal Employment Opportunity Commission for reporting claims of sexual harassment, including contact information for each agency;
  5. a statement that retaliation under the New York City human rights law is prohibited, and examples of prohibited retaliation;
  6. information regarding bystander intervention, including resources that explain how to engage in bystander intervention; and
  7. a description of the specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees can take to appropriately address complaints of sexual harassment.

Also, the training must be “interactive.”  However, the new law is clear that the training need not be in-person or live in order to be considered interactive.  The New York City Commission on Human Rights will be developing an on-line training module that can be used by employers to satisfy this training requirement, as long as employers supplement the module with a description of their internal complaint procedures.

The law requires employers to maintain records of all trainings provided, including signed employee acknowledgements, for at least three years.

New York City employers should be aware that this New York City training requirement is in addition to, and not in lieu of, the recently enacted New York State sexual harassment training requirement.  New York City employers should ensure that their training modules satisfy both state and city requirements, to the extent applicable.  To read a copy of our recent client alert summarizing the New York State requirement, please see our prior legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws.

Information sheet for employees

Effective September 6, 2018, all New York City employers must provide employees at the time of hire with an information sheet on sexual harassment.  This information sheet will be developed by the New York City Commission on Human Rights and may be included in the employer’s employee handbook.

New York City has recently adopted amendments to the New York City sick time law.  These amendments, which go into effect on May 5, 2018, will require action by New York City employers.

Background on New York City’s sick time law

Since April 1, 2014, all New York City employers have been required to provide sick time to their employees.  Whether such sick time is paid or unpaid depends upon the size of the employer.  New York City employers must provide each employee with a copy of the Notice of Employees Rights at the time of hire, and generally must maintain a compliant written sick time policy that is distributed to all employees.  Please see our prior legal updates for further detail on the requirements of the New York City sick time law, as follows:

New York City sick time law expanded to cover “safe time” under recent amendments

Recently, New York City passed a law, Int. 1313-A, that expands the reasons for which employees can use sick time to include “safe time,” and renames the law the New York City Earned Safe and Sick Time Act.  These amendments become effective on May 5, 2018.

Action required by New York City employers in response to recent amendments to New York City sick time law

In response to these amendments, New York City employers need to do the following:

  1. On or before May 5, 2018, update their written sick time policies to reflect the new “safe time” provisions; and
  2. On or before June 4, 2018, provide all existing New York City employees with a notice of their rights to use their sick time for “safe time” leave reasons. Note that on or after May 5, 2018, the Notice of Employee Rights provided to new hires will also need to include notice to employees of their rights to take “safe time.”

On April 12, 2018, New York State  Governor Andrew Cuomo signed into law new measures aimed at preventing sexual harassment. We summarized these provisions in detail in our legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws, published on April 11th, in anticipation of the bill being signed into law.  The new law requires New York State employers to adopt sexual harassment prevention policies and conduct annual training on such policies, restricts the use of non-disclosure and arbitration provisions related to claims of sexual harassment, and extends workplace protections against sexual harassment to non-employees.  The new law requires prompt action on the part of most, if not all, New York State employers.

Mandatory sexual harassment prevention policies and training

Effective October 9, 2018, every New York State employer (regardless of size and including those who employ only domestic and household employees) will be required to adopt a sexual harassment prevention policy that meets specified requirements.  New York State employers who currently have anti-harassment policies in place will likely need to update their policies, as most policies that we have seen do not cover every item that is required by the new law.